CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.463/2006
SH. DEEPAK KUMAR GUPTA
PARTNER: M/S MITHAS,
4-5 ANAND LOK MARKET,
SIRI FORT ROAD, NEW DELHI-110049
…………. COMPLAINANT
VS.
M/S REGENT AUTOMOBILES LTD.,
B-1/H1, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE,
MATHURA ROAD, NEW DELHI-110044
…………..RESPONDENT
Date of Order:02.06.2016
O R D E R
A.S. Yadav – President
This complaint is filed by Mr. Deepak Gupta, partner of M/s Mithas. In fact the car in question was purchased by M/s Mithas, a partnership concern which is engaged in commercial activities.
It is stated that in the month of December 2005, complainant sent the aforesaid car for service to OP. During the said service, it was pointed out by OP that roller tension drive belt of the car needs to be replaced. Pursuant to the advise of OP, the said belt was replaced by OP. Complainant paid the bill for the said service and replacement.
It is further stated that after getting its vehicle back from the OP started commuting. In a very short time of less than 15 days, and running of less than 100 kms the car encountered engine seizure. Complainant consulted professional automobile experts, who pointed out that seizure of the engine took place because of bad workmanship and bad material of the drive belt which had been replaced by OP. Complainant contacted OP and asked them to elaborate the reason for engine seizure. OP did not pay any heed to the request of complainant. Complainant sent a legal notice to OP which was also ignored by OP. It is prayed that OP be directed to refund Rs.33,888/- being the cost of repairing of the defect alongwith interest @ 18% p.a. plus Rs.10,000/- for compensation and Rs.5,000/- for litigation expenses.
OP in the reply took the plea that after the service of the vehicle, complainant has not informed about any defect in the vehicle and even if any defect has occurred in the vehicle it was not because of any deficiency in service on the part of OP. It is submitted that complainant has not attached any report or bill in support of his contention that the seizure of the engine took place because of bad workmanship and bad material of the drive belt. Complainant has failed to give any evidence that the vehicle was got repaired at some other workshop. It is submitted that complainant has not contacted OP after the service and repair of the vehicle. It is denied that complainant has approached OP for rectification of mistake. It is prayed that complaint be dismissed.
Nobody appeared for the parties.
We have carefully gone the written submissions of the parties.
Admittedly the car in question has been purchased by the partnership concern which is engaged in commercial purposes. So on the face of it, complainant is not a ‘consumer’ as per Section 2(1) (d) of Consumer Protection Act 1986 which defines ‘consumer’ as under:-
“(d) ‘consumer’, means any person who –
- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or party promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or resale or for approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
- hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the service for consideration paid or promised, or partly paid or party promised, or under any system of deferred payment, when such services are availed of with the approval of first mentioned person, but does not include a person who avails of such services for any commercial purpose.
[Explanation – For the purposes of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.]”
It is useful to refer to case of General Motors India Pvt. Ltd. – Appellant Vs G.S. Fertilizers (P) Ltd. & Anr. – Respondents - wherein para -9, Hon’ble National Commission held as under:-
“Para-9 - We have heard learned Counsel for both parties and have gone through the evidence on record. We note that in his complaint before the State Commission the Respondent-Complainant had clearly stated that the vehicle was purchased for the use of its Managing Director. We agree with Appellants’ contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing Director of a private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for ‘commercial purposes’ as a perk of his office. Counsel for the Respondent-Complainant has sought to challenge this contention by pointing out that since the present case pertains to 1999 and the amendment referred to was made only in 2002, it was not applicable in the instant case. We are unable to agree with this contention as well because the 2002 Amendment to the Act pertains to Section 2(1)(d)(ii) of the Act relating to hiring or availing of services for a consideration and not to section 2(1)(d)(i) of the Act relating inter alia to purchase of goods has been well settled by the Hon’ble Supreme Court as far back as in 1995 in its judgment in Laxmi Engineering Works V. P.S.G. Industrial Institute, II(1995) CPJ 1(SC)=1995(3)SCC583, wherein the Hon’ble Apex Court has ruled as follows:-
….. On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit-making activity will not be ‘consumers’ entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large-scale activity carried on for earning profit.”
It is nowhere averred in the entire complaint that vehicle in question was purchased by the firm to earn livelihood.
Though in para 8 and 9 of its complaint, complainant has stated that:-
“Complainant consulted professional automobile experts, who pointed out that seizure of the engine took place because of bad workmanship and bad material of the drive belt which had been replaced by OP. Complainant contacted OP and asked them to elaborate the reason for engine seizure. OP did not pay any heed to the request of complainant. Complainant sent a legal notice to OP which was also ignored by OP.”
Complainant has not placed anything on the record to show that there was any deficiency in service on the part of OP.
The complaint is not maintainable hence the same is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
